Introduction: Our Collective Responsibility for "Unjust" Laws

Vol. 31 No. 1

By

Professor Michael Greenberger is the chair of IRR's Criminal Justice Committee and an author of one of the articles in this issue.

We extend special thanks to Michael Greenberger, Wilson Adam Schooley, and Virginia E. Sloan for their invaluable assistance as special issue editors. Ronald J. Tabak also assisted with this issue.

In a speech to the American Bar Association (ABA) Annual Meeting in San Francisco last summer, U.S. Supreme Court Justice Anthony M. Kennedy raised fundamental questions about the wisdom of sentencing and correctional practices at both the federal and state level, including the excessive use of minimum mandatory sentencing. In response to Justice Kennedy's call to the ABA to focus on these issues, incoming Association President Dennis W. Archer quickly established the "ABA Justice Kennedy Commission," which will report its findings to the ABA House of Delegates at the organization's 2004 Annual Meeting in Atlanta.

Justice Kennedy's call to the ABA carries special urgency. The preceding March he joined the Court's majority in two 5-4 decisions upholding California's "three strikes law" as applied to the imposition of life sentences to shoplifting convictions. (Professor Erwin Chemerinsky, who served as lead counsel in one of the three strikes cases, analyzes those decisions in this issue.) While not mentioning these decisions by name, Justice Kennedy cautioned:

It is a grave mistake to retain a policy just because a court finds it constitutional. Courts may conclude that the legislature is permitted to choose long sentences, but that does not mean long sentences are wise or just. Few misconceptions about government are more mischievous than the idea that a policy is sound simply because a court finds it permissible. A court decision does not excuse the political branches or the public from the responsibility for unjust laws.

Justice Kennedy's wise counsel provided the catalyst for this issue of Human Rights, which is devoted to the topic "Criminal Justice and Injustice."

This issue begins with a simple one page statistical analysis of the criminal justice system as it stands today. In all too graphic terms, this single page reveals the dysfunctional nature of that system. It highlights this nation's shockingly high incarceration rate, supporting Justice Kennedy's observation that one in every 143 Americans is presently incarcerated as compared to roughly one in every 1,000 persons in comparable Western democracies. Moreover, the data show that if current trends continue, matters will only worsen over time. We face the staggering projection that at the current growth of incarceration rates, one in every fifteen people born in 2001 in the United States will spend some time in prison. The cost in dollars, let alone the loss in human potential, is enormous. The price tag for the criminal justice system's handling of each prisoner is roughly $78,000 per year.

The articles that follow these stark statistics are written by leading criminal justice practitioners and experts in their fields. Their writings demonstrate why far too many of those incarcerated in this country are either wrongly confined or confined far too long given the nature of their crime. They are too often victims of wholly inadequate legal representation and excessive and disproportionate sentencing. Even after prison terms are served, the often-unnecessary collateral consequences of conviction drive released prisoners further into a life of crime. More recently, the misuse of the Bush Administration's "War on Terror" as a veil to evade well-established constitutional protections designed to foster fairness and truth-gathering has led to additional inappropriate and unduly harsh forms of confinement.

While the courts have not always been reliable insurers of a just criminal system, as evidenced by Professor Chemerinsky's analysis of the Supreme Court's recent validation of the California three strikes law, other authors describe recent court victories that do give cause for hope. For example, in Wiggins v. Smith, 123 S. Ct. 2527 (2003), the U.S. Supreme Court invalidated a death sentence based on inadequate representation of counsel; in State ex rel. Simmons v. Roper, 112 S.W.3d 397 (Mo. 2003), the Missouri Supreme Court held that death sentences imposed upon juveniles of any age are unconstitutional; and in Padilla ex rel. Newman v. Rumsfeld, No. 03-2235, 2003 U.S. App. LEXIS 25616 (2d Cir. Dec. 18, 2003), the Second Circuit invalidated the president's unilateral decision to detain U.S. citizens arrested within the United States as so-called enemy combatants and hold them in military prisons with no right to counsel, process, or judicial review of status. Indeed, the articles in this issue outline promising proposed and ongoing strategies to achieve reform through litigation.

What is most impressive about these writings, however, is their collective portrayal of a significant emerging (and often bipartisan) grassroots movement, assisted by a number of organizations, including the ABA. It is a movement focused on a broad range of criminal justice reform issues directed not only to the courts, but to the political branches of government at both the national and state levels.

A simple review of the organizations with which the authors are associated highlights the burgeoning strength of the effort: The Constitution Project and the National Legal Aid and Defender Association (NLADA) (advocating improvement of indigent representation); the National Association of Drug Court Professionals and the National Drug Court Institute (supporting the establishment of drug court programs that effectively deal with the drug addiction problem); Families Against Mandatory Minimums (opposing often unduly onerous minimum mandatory sentences); The Sentencing Project (working for restoration of voting rights of, inter alia, non-incarcerated felons); and the Center for International Human Rights at Northwestern University School of Law (supporting the expansion of universal criminal jurisdiction to address violations of international criminal laws that might otherwise escape investigation or redress). The Brennan Center and the NAACP Legal Defense and Educational Fund are also mentioned within these articles as engaging in creative litigation on the disenfranchisement front, and collectively, many of the aforementioned groups have been instrumental in establishing the National Campaign to Restore Voting Rights, a coalition of eight prominent national civil rights and civil liberties organizations.

The ABA and our own Section of Individual Rights and Responsibilities (IR&R) have and will continue to play an important role in this reform effort. For example, the article written by Deborah T. Fleischaker, director of the ABA Death Penalty Moratorium Implementation Project, reflects the great contribution made by that project to buttress a nationwide coalition dealing with the injustices all too often underlying imposition of the death penalty. Indeed, the articles within this issue reference a multitude of highly influential ABA standards, reports, and resolutions that serve as a solid foundation for this reform effort. As Professor Douglass Cassel's article makes clear, the ABA, through the leadership of the IR&R Section and other ABA entities, will open an entirely new chapter on reform at the upcoming February 2004 ABA Midyear Meeting, when the House of Delegates will consider a recommendation on universal criminal jurisdiction.

The articles in this issue also document the real potential of the grassroots movement for criminal justice reform through all branches and levels of government. For example, Marc Mauer of The Sentencing Project reports that several state legislatures have relaxed or repealed disenfranchisement restrictions as a result of effective grassroots lobbying efforts. Deborah T. Fleischaker points out that, even prior to the U.S. Supreme Court's declaring, in 2002, the imposition of the death penalty on the mentally retarded to be unconstitutional, eighteen states had banned the practice. Virginia E. Sloan, et al., report in their article on indigent representation that, even in a time of very tight state budgetary constraints, Georgia, North Carolina, and Texas have recently enacted legislation attempting to improve indigent representation (although Mississippi repealed its effort because of the insufficiency of funds). While the authors correctly label these efforts as only a hopeful beginning, they do demonstrate the viability of grassroots coalitions seeking such reform in our executive and legislative, as well as judicial, branches.

While these articles provide the substance and suggested organizational structures for meaningful reform, the selection of Professor David Cole as this issue's "Human Rights Hero" provides the model for the force of character needed to implement that reform. David Rudovsky, the prominent civil rights and civil liberties professor and practitioner, describes the extraordinary contributions of his colleague, Professor Cole, one of the nation's foremost teachers, practitioners, authors, and commentators working to curb abuses in the criminal justice system. As Professor Rudovsky makes clear, while Professor Cole's entire career evidences an admirable combination of great courage and formidable legal ability, nowhere has that combination been more needed or tested than in the months following September 11, 2001, when Professor Cole was among the earliest to warn of, and to challenge, the Justice Department's excesses committed in the name of fighting the "War on Terror."

Finally, and most importantly, this issue of Human Rights should not be viewed as one solely for the criminal justice "specialist." Again, Justice Kennedy's recent speech is instructive:

The subject of prisons and corrections may tempt some of you to tune out. You may think, "Well, I am not a criminal lawyer. The prison system is not my problem. I might tune in again when he gets to a different subject." In my submission, you have the duty to stay tuned in. The subject is the concern and responsibility of every member of our profession and every citizen. . . .

Even those of us who have specific professional responsibilities for the criminal justice system can be neglectful when it comes to the subject of corrections. The focus of the legal profession, perhaps even the obsessive focus, has been on the process for determining guilt or innocence. . . .

We have a greater responsibility. . . . [W]e should know what happens when the prisoner is taken away. To be sure, the prisoner has violated the social contract; to be sure he must be punished to vindicate the law. . . . Still, the prisoner is a person . . . [and] a part of the family of humankind.

As "part of the family of humankind," the editors hope you are engaged by, and become part of the effort to address, these important issues of criminal justice and injustice.

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